Conclusions and recommendations
Criminal Justice and Courts Bill
Information provided by the Department
1. We
welcome the usefulness of the Government's ECHR Memorandum, which
is in accordance with our recommendations for best practice by
Government Departments. (Paragraph 1.3)
2. We
welcome the Government's acknowledgment of the importance of the
relevant international standards concerning the rights of children
and, specifically, the rights of children within the youth justice
system. However, there is no evidence to suggest that the relevant
international standards, including even the relevant rights in
the UNCRC itself, were considered by the Ministry of Justice prior
to the publication of the Bill and its accompanying explanatory
material, notwithstanding the commitment given by the Government
in December 2010. We have commented adversely on this lack of
prior analysis in a number of recent scrutiny Reports in relation
to Bills with clear implications for the rights of children, and
we regret that it is necessary to do so again. We intend to return
at a later date to the question of whether the Government has
made any progress towards implementing the commitment it gave
in 2010 to always have due regard to the UNCRC when developing
law and policy. (Paragraph 1.7)
Significant human rights issues
3. It
appears from the Government's response to our question that the
Government's justification for increasing the maximum sentences
for certain terrorism-related offences is not based on any proven
inadequacy of the current sentencing powers in cases which have
been prosecuted to date, but on the Government's view that "it
is important to maintain a consistent and up-to-date sentencing
regime for all offences on the statute book." We agree with
that proposition, and we accept the Government's justification
for increasing the maximum sentences for these serious terrorism-related
offences, especially in view of the courts' discretion to impose
a lower sentence remaining unaffected by the provisions. (Paragraph
1.14)
4. We
note, however, that the Government has not been very clear about
what has created the inconsistency or led to the sentencing powers
for these offences being out of date. If the Government's reforms
to sentences for Indefinite Public Protection ("IPPs")
have left sentencing powers for some offences less extensive than
they were previously, the Government should be prepared to say
so explicitly. Significant increases in maximum sentences require
clear and transparent justifications. (Paragraph 1.15)
5. The
Government's reply has clarified what was meant in its ECHR Memorandum
when it stated that the effect of the provisions in clauses 1-3
of the Bill may be to "compel" courts to make whole
life orders in certain cases concerning these terrorism-related
offences. The decision as to whether the seriousness of the offence
is such as to warrant a whole life order is a decision for the
court. The obligation to make such an order arises once such a
determination has been made by the court. In other words, when
the Government referred to the court being "compelled"
to make a whole life order in certain cases, it was referring,
not to mandatory whole life orders imposed by statute, but to
the fact that, where a court decides for itself that the case
is sufficiently serious to warrant such an order, the court has
no choice but to make such an order. (Paragraph 1.19)
6. In
view of the legal uncertainty that remains about the availability
of a review mechanism for whole life orders, notwithstanding the
clarification provided by the Court of Appeal in McLoughlin, we
have considered carefully what would be required in order to remove
that uncertainty. In our view, for the review mechanism to be
sufficiently certain, more specific details need to be provided
about the mechanism, including the timetable on which such a review
can be sought, the grounds on which it can be sought, who should
conduct such a review, and the periodic availability of further
such reviews after the first review. (Paragraph 1.26)
7. The
current Bill provides an opportunity for Parliament to remove
any legal uncertainty by specifying the details of the review
mechanism. In our view, providing the requisite legal certainty
could be achieved relatively simply by an amendment of the existing
statutory framework in s. 30 of the Crime (Sentences) Act 1997
to provide, for example, that a prisoner who is subject to a whole
life order can, after 25 years in custody, apply to the Parole
Board for a review of the continued justification for the whole
life order; and the Parole Board, if it is satisfied that the
prisoner has made such exceptional progress towards rehabilitation
that the justification for a whole life order no longer exists,
can substitute a determinate tariff. (Paragraph 1.29)
8. The
detailed safeguards in the Code of Practice will be crucial to
ensuring that the processing of data gathered from electronic
monitoring following release on licence is carried out in such
a way that any interference with the right to respect for private
life is necessary and proportionate to the legitimate aims pursued.
It is therefore important that there is some opportunity for parliamentary
scrutiny of the adequacy of those safeguards. We recommend that
the Bill be amended to make the Code subject to some form of parliamentary
procedure in order to ensure that Parliament has such an opportunity.
(Paragraph 1.37)
9. We
welcome, as a human rights enhancing measure, the provision in
the Bill to extend the current offence of possession of extreme
pornography to include possession of pornographic images depicting
rape and other non-consensual sexual penetration. We consider
that the cultural harm of extreme pornography, as set out in the
evidence provided to us by the Government and others, provides
a strong justification for legislative action, and for the proportionate
restriction of individual rights to private life (Article 8 ECHR)
and freely to receive and impart information (Article 10 ECHR).
(Paragraph 1.50)
10. The
international standards also include a number of other provisions
and principles which are highly relevant to Part 2 of the Bill:
for example, that the State should set up small open facilities
where children can be tended to on an individual basis and so
avoid the additional negative effects of deprivation of liberty;
and that institutions should be decentralised to allow for children
to continue having access to their families and their communities.
We emphasise the importance of these international standards to
Parliament's scrutiny of this part of the Bill. (Paragraph 1.53)
11. We
note that the Government does not appear to have carried out any
equality impact assessments of the proposed secure colleges policy,
and we recommend that such assessments should be carried out and
made available to Parliament at the earliest opportunity, assessing
in particular the impact on girls and younger children of detaining
them in large mixed institutions holding up to 320 young people
including older children up to the age of 18. (Paragraph 1.57)
12. In
our view, the Government's distinction between the provision in
the Bill itself and the secure college rules which are yet to
be made does not avoid the underlying human rights compatibility
problem with the substance of the policy: it is clear from the
reasoning of the Court of Appeal in the case of C v Secretary
of State for Justice that it is incompatible with Articles 3 and
8 ECHR for any law, whether primary or secondary legislation,
to authorise the use of force on children and young people for
the purposes of good order and discipline. (Paragraph 1.66)
13. In
light of the human rights compatibility issues explained above,
we recommend that the relevant provision in Schedule 4 of the
Bill should be deleted, and the Bill should be amended to make
explicit that secure college rules can only authorise the use
of reasonable force on children as a last resort; only for the
purposes of preventing harm to the child or others; and that only
the minimum force necessary should be used. (Paragraph 1.68)
14. We
have considered the extent to which, in the absence of a means
test at the point of imposition of the charge (as opposed to later
at the stage of enforcement), the proposed criminal courts charge
is likely to influence impecunious defendants' decisions about
whether to plead guilty, whether to elect summary or jury trial,
and whether to appeal against conviction or sentence. We have
found it difficult to assess this risk in the absence of clear
evidence about the impact of court charges in practice. We recommend
that the Government monitor carefully the impact of the criminal
courts charge on the right of defendants to a fair trial of the
criminal charge against them, and make available to Parliament
the results of that monitoring. In the meantime we ask that there
be made available to Parliament any other evidence that already
exists about the impact of other, existing, charges and fees on
criminal defendants' decisions about plea, mode of trial and appeals.
(Paragraph 1.72)
15. We
recognise that the Bill's provision of a new defence to the strict
liability rule for contempt of court, where proceedings become
active after matter has been published on the internet, is in
principle an improvement on the position under the current law.
Currently, publishers who make material continuously available
are exposed to the risk of becoming liable for contempt of court
where proceedings subsequently become active, unless they monitor
their archives to see if any such material has become contemptuous
in the light of subsequent proceedings. However, we are concerned
about the lack of safeguards on the face of the Bill against the
arbitrary or disproportionate exercise of the Attorney General's
power to, in effect, require material to be taken down on pain
of losing the new defence. For example, the Government says that
the Attorney General will only issue such a notice where the high
threshold statutory test of "substantial risk of serious
prejudice" is satisfied, but this is not stated anywhere
in the legislation itself. Nor is it clear from the Bill what
role the "public interest" defence in s. 5 of the Contempt
of Court Act 1981 should play in the Attorney General's decision
whether or not to issue a notice. (Paragraph 1.75)
16. The
Government may intend to provide for such safeguards in the regulations
which the Bill envisages will be made about the giving of an Attorney
General's notice, and the information to be contained in the notice.
We asked the Government whether it would make available a draft
copy of those regulations during the passage of the Bill to enable
Parliament to scrutinise fully the implications for freedom of
expression. The Government replied that it does not expect to
do so. To our surprise, it said "we do not view these arrangements
as having any implications for freedom of expression." We
disagree. The compatibility of the new Attorney General's notice
procedure with the right to freedom of expression in Article 10
ECHR will depend to a large extent on the detailed provision to
be contained in the proposed regulations and we cannot reach a
view on that question without seeing them. We recommend that the
Government publish a draft of the regulations at the earliest
opportunity to enable such scrutiny to be carried out. (Paragraph
1.76)
Deregulation Bill
Significant human rights issues
17. Applying
the economic growth duty to the EHRC poses a significant risk
to the EHRC's independence, for the reasons set out in the letter
from the ICC to the Minister for Equalities, and therefore to
its compliance with the Paris Principles and the Equal Treatment
Directives as implemented by the Equality Act 2010. The Government
is therefore risking the possibility of the EHRC's accredited
"A" status being downgraded and of putting the UK in
breach of its obligations under EU equality law. This could be
easily avoided if the proposed new duty did not apply to the EHRC.
However, it would appear that the Government still intends to
apply the economic growth duty to the EHRC and to attempt to deal
with concerns about independence in another way. (Paragraph
2.20)
18. We
endorse Baroness O'Neill's view. We are also conscious of the
importance of the Commission's category A status for the Foreign
and Commonwealth Office in terms, as Baroness O'Neill said, of
British soft power. Unless the continuing discussions between
the Government and the Commission satisfy the Commission that
the growth duty will not in any way impact upon its independence,
we recommend that this duty not be applied to the EHRC. (Paragraph
2.22)
19. We
recommend that the power of employment tribunals to make wider
recommendations in discrimination cases should be retained. (Paragraph
2.29)
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